How Often DoThey Want to Lock You Up? Let Us Count the Ways

Posted on Monday, 21st November 2011 @ 01:09 PM by Adelaide GuseText Size A | A | A

Violating the terms of service of any website could soon become a federal crime, if the US Justice Department gets its way.

The
US Department of Justice wants to make it a federal crime to violate
the “terms of service” of any website, reports Declan McCullagh at CNet.
According to this interpretation, breaching the terms of service of
websites — which can be done by simply using a fake name on Facebook,
lying about your weight on a dating site, or using Google if you’re
under the age of 18 — could make you a criminal.

According to a
leaked statement that Richard Downing, the DoJ’s deputy computer crime
chief, will reportedly deliver to Congress on Tuesday, the DoJ will
argue that the Computer Fraud and Abuse Act
(CFAA) — an amendment to the Counterfeit Access Device and Abuse Act
generally used to prosecute hacking and other serious cyber-crimes, and
which went into effect way back in 1986 — must give prosecutors the
ability to charge people “based upon a violation of terms of service or
similar contractual agreement with an employer or provider.”

According
to Downing, the expansion of this law is necessary for law enforcement
to prosecute individuals for identity theft, privacy invasion or the
misuse of government databases, among other infractions. Limiting
“prosecutions based upon a violation of terms of service… would make it
difficult or impossible to deter and address serious insider threats
through prosecution,” Downing is expected to say.

Just to
reiterate, in case you didn’t catch that sly turn of legalese, the DoJ
is saying that not allowing them to prosecute people for violating
websites’ terms of service would make it “more difficult or impossible”
to scare people with the threat of prosecution. Yay, America!

Of
course, if the DoJ is permitted to act upon the CFAA in the way they
want, a vast number of Internet users would be in violation of federal
law, especially because almost nobody even reads terms of service, let
alone follows them to the letter. Fortunately, some very smart and
authoritative people will be present to argue this very fact.

Orin
S. Kerr, professor of George Washington University Law School, will
testify against the Department of Justice, arguing that the DoJ’s
interpretation of the CFAA is “extraordinarily broad.”

For
example, Kerr explains that Google’s terms of service stipulate that if
““you are not of legal age to form a binding contract with Google,” you
are forbidden from using any of its sites or services. Seeing as the
legal age of contract in most states is 18, “a 17-year-old who conducts a
Google search in the course of researching a term paper has likely
violated Google’s Terms of Service. According to the Justice
Department’s interpretation of the statute, he or she is a criminal,”
writes Kerr.

The same goes for someone who uses a fake name in
their Facebook profile, or sheds a few pounds in their Match.com
description — both of which are forbidden by those sites’ terms of
service.

Kerr’s full testimony is well worth the read (view it here: pdf)
— a sentiment we hope Congress will agree with enough to reject the
DoJ’s efforts to impose a Draconian interpretation of the CFAA on the
American public.

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